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New NLRB Election Rules Take Effect

This is just a reminder that the NLRB’s new rules regarding representation elections have taken effect today, April 14, 2015.

vote

These new set of rules have been called “Ambush Election Rules” or “Quickie Election Rules” by many because they shorten the amount of time between when a petition for an election is filed and when the election takes place by removing or expediting many of the procedures that took place under the old rules.  In effect, this shorter time period will reduce the amount of time employers will have to talk to their employees about what it means to join a union or how being represented by a union will affect their workplace.

Some components of the Final Rule include the following:

  • the pre-election hearing that determines the logistics and scope of the election must be held within 8-days of the filing of the election petition;
  • less issues are allowed to be addressed during the pre-election hearing;
  • post-hearing briefs which are used to present arguments to the hearing office will no longer be permitted, unless the Regional Director allows it;
  • no “automatic stay” (or delay of the election) upon the filing an appeal of the hearing officer’s decision; and
  • hearings on any legal challenges that a party may file regarding the conduct of the election must be held within 21 days of the date of the election.

In addition, the Final Rule also imposes new requirements on employers who are facing a union organizing campaign, such as the following:

  • posting and distributing a notice of the union petition and possible election to all employees;
  • filing a detailed and written position statement one day prior to the pre-election hearing identifying the issues they wish to litigate (and any arguments not posited in the position statement are deemed waived);
  • providing the union with a more detailed “Excelsior List” within 2 days (instead of 7 days) to now also include email and phone numbers, as well as information about the employees’ job shifts, job classifications and work locations;
  • delivering an electronic copy of the Notice of Election to all employees.

On April 6, 2015, the NLRB’s General Counsel issued a Guidance Memorandum on the new representation election rules.  This 30+ page document provides an explanation of how the General Counsel will interpret the changes to the rule and provides guidance to NLRB regional offices, employers, labor consultants, and attorneys on how to work with the new rules.  A copy of the Guidance Memorandum can be viewed here:  GC Memo 15-06.

The majority of the Final Rule is similar to what the NLRB attempted to implement in 2011, with some revisions.  (The 2011 version of the new rules was invalidated by a Federal Court because the Board did not have a quorum of members when it tried to adopt those rules.  See Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).  The Board had only two members at the time it adopted the 2011 rules.)